The students’ constitution
Isaac Davison at NZ Herald reports:
The Waitangi Tribunal would have binding powers to remedy Treaty breaches in a written constitution drawn up by 50 of the country’s brightest young people.
The draft constitution, developed by law, history and communications students at Parliament, also called for New Zealand to become a republic and for four-year parliamentary terms.
I agree with a four year term (essential in fact) and a republic. The Treaty issue is more difficult.
Lead facilitator Dean Knight, from Victoria University Law School, said the group made it very clear that the Treaty of Waitangi should be central to a new constitution.
The final document, which is published online today, said: “The tribunal may provide a remedy to a claimant if a breach of a right arises from a breach of the principles of Te Tiriti.”
Mr Knight noted that the gathering did not reach a consensus on this clause. “What they’re signalling is enhanced powers for the Treaty of Waitangi, moving towards binding recommendations, but not necessarily going as far as striking down legislation.”
At present, the tribunal could make recommendations which Government could choose to ignore.
Otago University law student Louis Chambers said the biggest sticking point in developing the document was how strong the constitution would be. “We had to ask: ‘Is the constitution a symbolic document that guides the New Zealand public or is it something that you can actually go to the courts and enforce if it is not complied with?”‘
The group eventually decided that the Bill of Rights would be strengthened, and the Waitangi Tribunal would be given greater powers. But ultimate responsibility would be left to Government, and the judiciary would not be able to declare any law invalid if it breached the constitution.
I support there being a written constitution. Having seen a Government retrospectively amend the Electoral Act to keep a Minister in Parliament, I am convinced we need safeguards from a non-benign Government.
I’m not against the Treaty of Waitangi being part of a constitution, but with two caveats.
- It must be the Treaty itself in the constitution, not these nebulous “principles of the Treaty” that have taken a life of their own.
- The constitution, and hence the Treaty, must be amendable
You can not put something into constitutional or supreme law, which is unamendable. The US Constitution and Bill of Rights is amendable. The US Declaration of Independence is not, and hence has no status in law.
If people want the Treaty to be part of our constitution, they have to provide for a mechanism which can update it